Monthly Archives: August 2014

A: In certain circumstances a court can modify an irrevocable trust. This can happen when there has been a change making the original purpose of the trust impossible. A wonderful example would be a trust that is established to help fund research regarding a disease and a cure is found for the disease. Additional funding under the trust in this example would be unnecessary and a court under these circumstances could modify the trust. The modification cannot change the nature of the trust as the court should consider the original intent of trust.

If you have any questions about an existing trust or the creation of a trust, please call MHJ Law, PLLC at 407-792-6172.

A copy of Section 736.04113 that authorizes courts to modify irrevocable trusts in certain circumstances is as follows:

736.04113 Judicial modification of irrevocable trust when modification is not inconsistent with settlor’s purpose.—
(1) Upon the application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subsection (2), if:
(a) The purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill;
(b) Because of circumstances not anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust; or
(c) A material purpose of the trust no longer exists.
(2) In modifying a trust under this section, a court may:
(a) Amend or change the terms of the trust, including terms governing distribution of the trust income or principal or terms governing administration of the trust;
(b) Terminate the trust in whole or in part;
(c) Direct or permit the trustee to do acts that are not authorized or that are prohibited by the terms of the trust; or
(d) Prohibit the trustee from performing acts that are permitted or required by the terms of the trust.
(3) In exercising discretion to modify a trust under this section:
(a) The court shall consider the terms and purposes of the trust, the facts and circumstances surrounding the creation of the trust, and extrinsic evidence relevant to the proposed modification.
(b) The court shall consider spendthrift provisions as a factor in making a decision, but the court is not precluded from modifying a trust because the trust contains spendthrift provisions.
(4) The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, terminate, or revoke trusts.

This information is posted for educational purposes only and does not create an attorney-client relationship. Florida law on trusts can change and can be dependent on particular facts, prior to taking any action contact a local attorney that is familiar with trust law in Florida.

Under Florida law an individual can establish a trust to take care of one or more pets. While in the past this was only something that wealthy people did to care for their pets, today more and more people use the existing laws in our state to care for their animals by creating a trust for pets. Section 736.0408 of Florida Statutes authorizes the establishment of trusts for pets, and a copy of it is reprinted below. If you are interested in creating a trust for the people or pets in your life please contact MHJ Law, PLLC at 407-792-6172.

Section 736.0408 Trust for care of an animal.—

(1) A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates on the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, on the death of the last surviving animal.
(2) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.
(3) Property of a trust authorized by this section may be applied only to the intended use of the property, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise as part of the settlor’s estate.

This information is posted for educational purposes only and does not create an attorney-client relationship. Florida law on trusts can change and can be dependent on particular facts, prior to taking any action contact a local attorney that is familiar with trust law in Florida.